2H 2018 Quick Links, Part 1 (Copyright)

* Capitol Records LLC v. ReDigi, Inc., No. 16‐2321 (2d Cir. Dec. 12, 2018): “ReDigi version 1.0’s process for enabling the resale of digital files thus inevitably involves the creation of new phonorecords by  reproduction, even if the standalone digital file is deemed to be a 2 phonorecord.  As for the argument that, as ReDigi copies a packet of data, it deletes the equivalent packet in the user’s device so that the amount of data extant in the transfer process remains constant, this does not rebut or nullify the fact that the eventual receipt and storage of that file in ReDigi’s server, as well as in the new purchaser’s device (at his option), does involve the making of new phonorecords.”

Interesting footnote: “We recognize that the use of computers with digital files of protected matter will often result in the creation of innocuous copies which we would be loath to consider infringements because doing so would effectively bar society from using invaluable computer technology in relation to protected works. We believe this precedent will not have that undesirable effect for reasons discussed below in the section on fair use. What we consider here is that the making of unauthorized reproductions in pursuit of an objective to distribute protected matter in competition with the rights holder. The production of innocuous, unauthorized reproductions through the unavoidable function of a computer, when done for purposes that do not involve competing with the rights holder in its exclusive market, is outside the scope of this dispute.”

Another interesting footnote: “To the extent a reproduction was made solely for cloud storage of the user’s music on ReDigi’s server, and not to facilitate resale, the reproduction would likely be fair use.”

* UMG Recordings v. Grande Communications Network, 2018 WL 6624207 (W.D. Tex. Dec. 18, 2018):

Notwithstanding the terms of the AUP in place until October 2016, the reality was, in Grande’s own words, it would not terminate a user for infringement “regardless of the source of any notice,” “regardless of the content of any notice,” and “regardless of the volume of notices … for a given customer.”  This amounts to absolutely no implementation of the policy Grande had allegedly adopted. And, as in BMG, the policy that was actually in effect for this time was that Grande was determined never to terminate a subscriber, no matter what information Grande received about that customer allegedly infringing a copyright. It is hard to imagine a case in which it is more clear that the DMCA safe harbor is not available.

Prior blog post.

* Gray v. Perry, 2:15-cv-05642-CAS-JC (C.D. Cal. Aug. 13, 2018)

The Court acknowledges that the mere existence of copyrighted materials on YouTube and Myspace would not justify an inference of access…. But the Court is persuaded that plaintiffs have shown more than just mere posting of “Joyful Noise” on the internet. Due to the millions of views and plays of “Joyful Noise” on YouTube and Myspace, both readily accessible websites, and the success and popularity of “Joyful Noise” in the Christian hip-hop/rap industry, a reasonable jury could conclude that there is more than a “bare possibility” that defendants—who are experienced professional songwriters—had the opportunity to hear “Joyful Noise…. they have demonstrated a triable issue of fact as to access because “Joyful Noise” achieved critical success, including a Grammy nomination, and was readily available and viewed millions of times on YouTube and Myspace. Defendants’ concerns about the meaningfulness of the YouTube and Myspace view counts, the distinctiveness of the Christian music market, and the lack of commercial activity are questions of fact to be resolved by the jury

* ABS Entertainment Inc v CBS Corporation, No. 16-55917 (9th Cir. 2018):

a remastered sound recording is not eligible for independent copyright protection as a derivative work unless its essential character and identity reflect a level of independent sound recording authorship that makes it a variation distinguishable from the underlying work…. If an allegedly derivative sound recording does not add or remove any sounds from the underlying sound recording, does not change the sequence of the sounds, and does not remix or otherwise alter the sounds in sequence or character, the recording is likely to be nothing more than a copy of the underlying sound recording and is presumptively devoid of the original sound recording authorship required for copyright protection. Such a work lacks originality. This presumption may, of course, be overcome, by showing that the work contains independent creative content, recognizable contributions of sound recording authorship or variations in defining aspects that give a derivative sound recording a new and different essential character and identity….

Here, there is no dispute that all of the sounds contained in the remastered sound recordings—the vocals, instruments, inflection, dynamics, rhythms, and sequences—were initially fixed in a studio before 1972. There is also no dispute that the remastering engineers did not add or remove any sounds and did not edit or resequence the fixed performances. For these reasons, the remasters presumptively lacked the originality necessary to support copyright protection as derivative works.

* Techdirt: The Wonky Donkey: How Infringement Helped Create A Best Seller… Which Would Be Impossible Under Article 13

* Techdirt: YouTube’s $100 Million Upload Filter Failures Demonstrate What A Disaster Article 13 Will Be For The Internet

* Philpot v. LM Communications, 5:17-cv-00173-CHB-EBA  (ED Ky. July 10, 2018). Republishing a Creative Common-licensed photo from Wikipedia, without providing the required attribution, constituted copyright infringement.

* Stern v. Lavender,  2018 WL 3520497 (SDNY July 20, 2018). The court dismisses a 512(f) counterclaim:

The evidence here uniformly supports plaintiffs’ defense of good faith. And critically here, the Lavenders have not supplied a factual basis on which to find the opposite: that plaintiffs, in pursuing takedown notices, made a knowing material misrepresentation. Plaintiffs’ claim of copyright infringement in connection with the Lavenders’ offer to sell Last Sitting photographs and Modified Prints was clearly colorable. It tracks the infringement claims that will proceed to trial in this lawsuit. And while the facts as to whether the late Stern had given away certain items and authorized certain posthumous actions are disputed, the Trust had sound reason to conclude that he had not done so and that the Lavenders do not own the objects they were offering for sale. If so, the Lavenders’ display of photographs of those objects incident to the offer of them of sale would necessarily violate plaintiffs’ copyright (as those displays would no longer be fair use because they would not be in service of lawful sales). For the Trust to assert this position did not evince bad faith or entail the making of a material misrepresentation. Further, as to the “reason code” that plaintiffs’ counsel came to use, counsel’s written exchange with eBay reflects that counsel accurately recited plaintiffs’ theory of infringement to eBay, and then relied on eBay’s instructions as to the code to use.

* Johnson v. New Destiny Christian Center Church (M.D. Fla. July 31, 2018). Court awards $12.5k for malicious prosecution of copyright case based on defendant’s “lack of sleep, diminished enjoyment in various hobbies, and overall worry about the litigation & its consequences on her life”

* Mometrix Media, LLC v. LCR Publishing, LLC, 2018 WL 3625765 (Tex. Ct. App. July 31, 2018), replaced by 2018 WL 6072357 (Nov. 21, 2018)

Because Mometrix raised the issue of preemption under section 512(f) for the first time in its reply brief in this Court, the record is insufficiently developed for us to make this determination because it lacks evidence relevant to whether CreateSpace or Amazon stores information at the direction of users. See Distribuidora (observing that complaint did not state enough facts for court to determine whether iTunes stored music at direction of users); Rusk State Hosp., 392 S.W.3d at 96 (noting that plaintiff may not have had opportunity to amend pleadings or develop record when jurisdiction is not raised in trial court). There is no evidence conclusively establishing the relationship between CreateSpace and Amazon or whether CreateSpace is Amazon’s agent for purposes of making material available on Amazon’s website, see Mavrix Photographs, 873 F.3d at 1057; no evidence of whether or to what extent either CreateSpace or Amazon plays a role in making material accessible on Amazon’s site, see id. at 1056; and no evidence concerning whether and to what extent CreateSpace or Amazon processes the content or otherwise exercises discretion in organizing, making available for purchase, or promoting LCR’s publications, see Viacom, 676 F.3d at 40; Distribuidora de Discos Karen, 2015 U.S. Dist. LEXIS 42636, at *20; cf. Rock River, 2011 U.S. Dist. LEXIS 46023, at **50 (noting that it was “undisputed that Apple, and not its users, decides what is available for purchase on iTunes” and concluding that complaint at issue was “not a take-down letter as described in section 512(c) because it [did] not address claimed infringement ‘by reason of the storage at the direction of a user’ ”(quoting 17 U.S.C. 512(c)(1))). Consequently, the record does not contain enough evidence for this Court to determine whether section 512(c) applies to this case. It follows that the record is insufficiently developed for this Court to determine whether LCR’s claim for tortious interference is equivalent to a claim under section 512(f) and whether exclusive federal jurisdiction precludes jurisdiction in the trial court and in this Court.

* Otto v. Hearst, Case 1:17-cv-04712-GHW-JLC  (SDNY Dec. 10, 2018): “Stealing a copyrighted photograph to illustrate a news article, without adding new understanding or meaning to the work, does not transform its purpose—regardless of whether that photograph was created for commercial or personal use.”

* Variety: How Hollywood Is Racing to Catch Up With Netflix